Facts:  Petitioners Albert Ugas, the Pierce County Deputy Assessor-Treasurer, and Daniel Fishburn filed a recall petition against respondent Mark Lindquist, the Pierce County Prosecuting Attorney, that charged Lindquist with improperly failing to investigate alleged corruption and falsification of records by former Pierce County Assessor-Treasurer Ken Madsen and obstructing justice by deterring law enforcement from investigating Madsen.  Prior to a scheduled sufficiency hearing before Judge James Cayce in the Superior Court for Pierce County, Ugas and Fishburn filed an affidavit of prejudice requesting that another judge hear the case.  The superior court dismissed the affidavit of prejudice, ruling that it needed to be accompanied by a signed motion and was untimely.  The superior court subsequently found that the charges against Lindquist were factually and legally insufficient and awarded Lindquist attorney’s fees on grounds that the recall petition was frivolous and in bad faith.  Ugas and Fishburn appealed this decision to the Supreme Court of Washington.

Question(s):  Did the superior court err in dismissing the affidavit of prejudice?

If not, did the superior court err in dismissing the recall petition as factually and legally insufficient?

If not, did the superior court err in awarding Lindquist attorney’s fees on grounds that the recall petition was frivolous and in bad faith?

Conclusion:  Justice Fairhurst’s opinion for the Court affirmed the superior court, concluding that the affidavit of prejudice had been properly dismissed insofar as it was not accompanied by a signed motion and was untimely under Washington Revised Code §4.12.050(1), which requires that an affidavit of prejudice be filed before the presiding judge has made any order or ruling involving discretion, given that it was filed after Judge Cayce had ruled on a motion for a continuance.  The Court also ruled that the recall petition was legally and factually insufficient as Lindquist acted within his discretion to decide not to prosecute Madsen and the petition presented insufficient evidence that Lindquist had obstructed justice by deterring law enforcement from investigating Madsen.  Finally, the Court found that the recall petition was frivolous and in bad faith and that awarding Lindquist attorney’s fees had therefore been proper in light of the fact that Ugas and Fishburn were aware that there was a legally cognizable justification for Madsen’s actions, filed the recall petition for political purposes, and refused to participate in both the hearing to determine the disposition of the affidavit of prejudice and the hearing to determine whether the recall petition was factually and legally sufficient and refused to produce documentation in response to a subpoena.

Docket No. 85361-4

Petitioner: Albert Ugas; Daniel Fishburn

Respondent: Mark Lindquist

(Counsel: G. Perrin Walker, Mark A. Hood, Daniel C. Montopoli, Douglas Warren Vanscoy, and David H. Prather)

Decided: Thursday, July 21st, 2011

Prevailing Party: Mark Lindquist (Respondent)

Vote: 8-1

Citation: Pending

Court: Madsen2 Court (2011-)

Madsen

Johnson

Alexander

Chambers

Owens

Fairhurst
(Majority)

Johnson
(Dissent)

Stephens

Wiggins